Challenges to the free movement residence and work rights of foreign migrant workers in South Africa and Kenya : a comparative study

Abstract

Issues of migration are complex and are inter-related with other problems such as irregular migration, human trafficking, human rights abuse, crime and corruption. Most of the problems in the world have occurred because of migration, particularly irregular migration. In the African context, with focus on South Africa and Kenya, as they are the economic hubs in their respective regions, the root causes of irregular migration need to be identified and dealt with in a manner that benefits everyone. What causes migrants to flee to other countries? When the political and economic climate was favorable in South Africa, there were few to no complaints about foreign migrants, but because of the current problems in the country, migration has come under the spotlight and the blame shifts on to foreign migrants. Similarly, in Kenya, the issue has come under the spotlight due to the political turmoil in some countries in the region during recent years, such as in South Sudan, which has given rise to the influx of refugees to Kenya. With these issues, governments must further deal with the challenge of integration of foreign migrants into communities as they are perceived to be the root cause of all the problems and become targets of xenophobic attacks. The South African Constitution has a Bill of Rights in terms of which everyone is guaranteed access to the rights and protection of the law. Everyone is included, both citizens and non-citizens. Illegal foreign migrants also have access to these rights, despite their non-legal status. However, given the influx of foreign migrants into the country in recent years, it has become extremely difficult to manage access to these rights, especially for undocumented foreign migrant workers who still need protection in law. Similarly, Kenya hosts a large asylum-seeking and refugee population, and the Department of Refugee Affairs (DRA) and the United Nations High Commissioner for Refugees (UNHCR) under the 2006 Refugees Act, and the 2009 Refugees Regulations govern such matters. Against this background, the rights to work, freedom of movement and residency in South Africa will be examined, and a comparison will be made on similar rights for foreign migrant workers in Kenya.